FOOTNOTE 1: Mediator Comments on Beginning Mediation

Dick Salem

 [Full Interview] [Topic Top]

Typically it starts on the phone and at a certain point it continues on-site if the case warrants it. After talking to the person or people involved in the matter and making some preliminary judgements, you might give them some initial advice. I'd suggest you talk to the assistant principal and call me back. If he is unaware that this is happening in the classroom and this teacher is doing this to your child, here are some things you might do to move this forward. Here are some people locally you might call, someone we know we'd refer them to. Or depending on the state of the matter I might call the assistant principal, or the school superintendent. Very often when talking to establishment officials I would start at the top with my Justice Department credentials to get their attention and worry them a bit. They seldom want the Justice Department to come into their school, police department or community. Many people with grievances do, but no public official wants anyone from the Justice Department coming in. So we don't say this is a Community Relations Service mediator governed by a confidentially clause. We say, "this is the Justice Department." So, we would have to be careful in determining who to call first and let them know we are coming in. We wouldn't start with the assistant principal. We might call the principal or the superintendent of schools and say we've heard there is a problem at the George Washington School, and there have been some protests, we're wondering if we can be of any help. We offer our services and ask if we can be of assistance and try to get some information. I guess everybody would approach it differently, but we try to create some rapport so this person will be willing to talk to you. You begin to build your information base, your assessment about what's happening. Also during this time, you try to build some trust and get some indication whether they would be receptive to your coming in. Or you might just say, "we're coming in." You might say, "we're coming in for this matter," or you might say, "I'm going to be in the area anyway, I'd like to drop by and chat with you about it when I'm in your city."

Leo Cardenas

 [Full Interview] [Topic Top]

Did you make the decision about who to call first? Did you always try to call the minority group first or the authorities first? Did you have a rule about that?

Answer:
It would depend on our knowledge of the disputants. In a lot of cases, we know someone and so we would call whoever we knew in that particular community, and sometimes, in fact before we even contacted them, we would contact people to get a background at the local level.

Question:
Would you always contact both parties, or all parties involved before you decided to go on-site?

Answer:
Always contact both parties, yes.

Bob Hughes

 [Full Interview] [Topic Top]

Were there any other reasons why you wouldn't inform a party other than just time constraints?

Answer:
Well, there are plenty of communities where we would not know who to contact, smaller rural areas. We may not know anybody there, or have a contact. So you just show up. You try to contact somebody who does know the community, or that had been through there, or the next community over. "Can you put me in touch with somebody there?" But, again, you don't always have the luxury of making that many phone calls. And at some point, you've got to go, and you will end up going unannounced. And in rural areas, that's not unusual. Sometimes that works against you, but other times, people are glad to see you.

Question:
So who are you looking for once you get there? Who are you looking for first?

Answer:
The people that call me, usually, just to get that out of the way. I usually try to respond to whoever calls and try to make contact with them first.

Question:
And the cases where you are not called and don't have a contact, who are you looking for and what's your procedure at that point?

Answer:
Well, I call somebody that I have a relationship within the next community over, or somebody who works that area.

Manuel Salinas

 [Full Interview] [Topic Top]

A lot of times when I go into a situation, even though it was the reverse here, I'd rather talk to the system first, the police, the city, the schools, or whatever, than talk to the community. Because they're they ones that ultimately can make the change. So if you deal with them first, and they get comfortable with you, or at least they know you're there, even though they're not comfortable with you, at least then you've opened the door somewhat, so that the community then can come in. Then you talk with the community, if you have the community clamor first, the door may not open as easily. So I'd rather go the other way. I think the city fathers, police, educators, they want to know you're there. And they want to know who you are and what you do. So once you open that door, you're better able then to get to the problem and work with the community. And the community won't condemn you for meeting with them first. I never had been condemned for it. But in Salt Lake City, I went to the police, but then I immediately went to the other gentleman, without a lot of dialogue with the police department. Maybe I should have proceeded as I normally do, but I thought it was too hostile. I thought I'd better get to that gentleman first.

Nancy Ferrell

 [Full Interview] [Topic Top]

Part of our approach was that you go to the highest level for entry and so I needed to talk to the President to find out if he was open to us going in.

Julian Klugman

 [Full Interview] [Topic Top]

Question:
Let's back up, who did you call initially when you said, "Hey this sounds like a good idea." Did you call the school system, can you walk us through this?

Answer:
You have to call the superintendent first. We had program specialists, Bill Briggs was an education specialist, so he got permission through the superintendent of schools. The power is at the top, but the principal runs the school, so you really need both. I knew a black woman on the school board. When there's a poor school system, poor quality police department, who gets the bottom of the ladder, the people with the problems who need help. Anyway, we got them to say "yes," and the kids were just amazed by us because we took them seriously. First of all, they have to agree to some things before you do this. I have prerequisites, I won't do it unless it's okay from the top and the principal goes with it. I won't do it unless there's an agreement up front that there will be a student group formed which will meet on a regular basis. We're going to have a work plan. Also subsequently we learned some other things. I won't go in and do it if there is a weak principal because it's a complete waste of time. If the principal's the problem, forget it, because this is hard to do.

Question:
What about teacher involvement?

Answer:
We tried that. Teacher involvement, parent involvement. We tried that, it's too ambitious. You're talking about fights between students. That's what you focus on. But subsequently when I got into workshops for the Association of California School Administrators, we divided it other ways; we did it by school systems. I would get 5 to 10 school systems together because it was too slow to do it by school. In L.A., they set up sub districts, like 16 schools. We took one sub- district out in the Valley, 16 schools that were going through a lot of racial change. In fact it wasn't just racial, it was ethnic changes as well. They were getting the Russians; they were getting the Iranians. So we split different ways. I would end up with school superintendents; somebody else ended up with the principals. We did try to do it with parents, except we couldn't get the Hispanic parents to participate. We tried to do it through the Catholic church. We spent an incredible amount of time trying to get the service employees involved. That first school system, we tried to get everybody involved. (I remember, with the Mexican kids, I used Ada Montare.)

Nancy Ferrell

 [Full Interview] [Topic Top]

Question:
Do you have any standard approaches of who you talk to first?

Answer:
Obviously if somebody initiated the contact, that would be easy. If it was a news report or some other way that I found out about it, I would try to contact the aggrieved group first to try to get some read on what the level of violence and tension is. Also, how quickly do we need to respond?

FOOTNOTE 2: Mediator Comments on Who Should Be Involved in Mediation

Bob Ensley

 [Full Interview] [Topic Top]

First of all, you have to get credible people. You call so-and-so, they'll tell you there are certain people in every community that both black and white feel comfortable talking to. That's the only way to do it because you cannot do it yourself; you don't live there. You're not familiar with anyone there. You have to get people that are respected, who are honest. You let that rest with the community, don't try to take on that burden yourself, because you can't win.

Silke Hansen

 [Full Interview] [Topic Top]

Question:
How do you determine who exactly to talk to?

Answer:
If it's something that was just in the paper, and I don't know anybody there, I would start by trying to locate the organization and/or any names that were mentioned in the paper. I would try to find a way of contacting them and talking to them. If there are no organization names or specific individuals to start with, then I'd try to find out which minority organizations exist in the community in question. Then I would figure out whether I knew anyone in the community who might be able to get me connected to the actual "players". I still would prefer to start with the community perspective because that is where the conflict seems to exist and then move on to the institution. In each case, I would ask the people that I talk to, "Who else would I contact to get more information, to get a broader perspective on this?"

Silke Hansen

 [Full Interview] [Topic Top]

But before school opened we did a lot of work with community leaders, including clergy, with the school system, and police department, trying to do some contingency planning. We assumed that there would be demonstrations, but we wanted them to remain peaceful. So we planned what these groups would do in case of an emergency. Who was going to be the liaison between school and police for instance? We also started looking for ways to form multiracial student councils so that, as these new groups of students were brought together, that they would have a mechanism for being able to work together. Unfortunately, in South Boston, that was next to impossible, because white kids and certainly their parents were very clear that they didn't want to do anything to try to make this successful.

Martin Walsh

 [Full Interview] [Topic Top]

So, it's who is taking the leadership; who are the real players in these incidents. Sometimes we go by who comes forward and is willing to address the problem. I remember one of the problems with which I was involved in my hometown of Wellesley, MA. One of the cases there was with Dee Brown, a basketball player with the Boston Celtics. He was stopped as the alleged bank robber who robbed a bank in Wellesley the day before. It led to a celebrated case in the paper. There was a lot of publicity. Into that process came a public meeting which the selectmen held in Wellesley at which the issue of the police treatment of him was discussed. The police were defending their procedures. But the major issue that came out of the meeting was that other members of the African-American community came forward and said that they had been stopped driving through Wellesley. The issue was racial profiling even though we didn't call it that then. There was a real problem. From that meeting, one leader reached out and helped convene a group of African Americans, some who testified. They became the community group. Was everyone reached out to? No, not necessarily. But, I always think you want someone who might be on the negotiating team. If you want to make some progress, I think the best way is through the mediation process and getting the community involved. But sometimes you don't know whether that group is representative of the community. There was no election and there was no formal group formed. I suggested that they call themselves something, so they called themselves the Wellesley African-American Committee (WAAC). They dealt with a number of problems, not only with the police but a number of other issues like schools in Wellesley.

Angel Alderete

 [Full Interview] [Topic Top]

It started off again by knowing someone in the city of Pomona, and asking him who the people might be that I ought to contact. He was willing to sort of lead the interface for me, and so that's how we got in contact with the Latino community and with the African American community. With official folks. It isn't hard with official folks. You just show up and introduce yourself, and they'll sit down and talk to you. But the community folk, they don't care who you are. I mean, they want you to prove yourself.

Efrain Martinez

 [Full Interview] [Topic Top]

What I'm looking for is consistent names. If four of these people tell me I ought to talk to John Doe, I'll make sure I talk to John Doe. Now once I get to see them, what do I see them for? Essentially, I want to know what they know about the situation.

Nancy Ferrell

 [Full Interview] [Topic Top]

Question:
How do you find somebody to call?

Answer:
I don't know, it's kind of like being a detective I guess. You check the paper and you call groups that you're aware of. Sometimes you call the newspaper and find out if they have any names. A lot of times, in the minority community, the church leadership will know somebody that's involved. So you just have to ask around the first six months or a year and after that, I've created this file of people in every community. So I may even call one community and say, "Do you know anyone in this community?" Usually they do. But you begin to have a network. Once you've established those trust relationships and those networks within a territory you can do something with a phone call because you've already established the trust, you've already coached them through some conflicts before. You really do multiply your efforts when you create those networks and alliances with trusting people. I began to have people from the establishment call me, and that was a real benchmark. The establishment people were saying, "I think we've really done some things here which might be a problem. We're not sure where to go with it, could you help us out?" You just create a network like you would with anything else.

Nancy Ferrell

 [Full Interview] [Topic Top]

Question:
Did you always know all of the parties before you went down?

Answer:
Yes, if at all possible. You might not be able to get in touch with everybody, but the goal would be to get in touch with all of them before you got there. Whoever I talked to first, I would tell them that I'm going to be talking to the other party today. "Before I leave, I'll be talking to these people. Is there anyone else you think I should talk to?" That did two things. First, it broadened the network for talking to people, it began to identify some of those leaders. Second, it began to establish the trust that I was in fact going to talk to the mayor, the police chief, LULAC, or this person who's in charge of the demonstration. Everybody knew I wasn't trying to hide anything. Usually the next person is the chief of police who will say, "Why did you talk to them before you came to talk to me?" I would tell him I made the appointment with them first and I didn't try to go into that anymore. I knew there was always that feeling of, "Who did you talk to first?" One would always say, "They're just trying to con you." So I just say, "Everyone's trying to con me. It's part of the deal. Everybody tells the story from their perspective." I understand that it's part of the dance. "I understand that's a concern of yours." I'm trying to minimize any impact it has in a negative way. "I think we can be helpful."

FOOTNOTE 3: Mediator Comments on Reluctant Parties

Wallace Warfield

 [Full Interview] [Topic Top]

Question:
So when you were making that initial telephone assessment as to whether CRS should get involved, was one of your criteria whether or not you thought they’d be amenable to talks, or was that something that was left for later?

Answer:
Well, you’d get some of that. If you got into a conversation with people on the phone, you might ask, "Is this something that you think you’d like to get resolved? What do you see happening? What do you want to do with this?” You may not ask them about whether or not they want to get it resolved; you might ask, "What do you see as an outcome? What would you like to see happen in this particular situation?” Depending upon what they would say, that would give you some clues as to their willingness to sit down and talk.

Question:
And if you had the feeling that they probably wouldn’t, would that be a reason for you not to get involved?

Answer:
Not necessarily. It certainly would make your job a lot harder, but what CRS would do is that they would change the nature of the intervention. So if the intervention was initially thought of as being a conciliation or a mediation that would bring both sides together, and one side or the other (particularly the establishment side) decided that they didn’t want that to happen, you could still go in, but you wouldn’t be doing that; you’d be doing something else. Maybe trying to reduce the level of violence, or doing some kind of evaluative work with the minority.......it tended to get CRS people in trouble when they did that, because the other side always knew when you were in town, and you’d have to sort of answer to the question: "I thought we told you we weren’t interested.” "Yeah, but I’m here doing something else.” And you don’t want to push it to the point where you’re saying, "I’m the federal government, and I can go anywhere I want.” You don’t want to do that.

Martin Walsh

 [Full Interview] [Topic Top]

What do you do when you can't break that barrier and someone says they don't want you in this case, or one of the parties says we just don't want to deal with you." Have you had that experience?

Answer:
I think the hardest thing is less that they are verbalizing that they don't want you in and more the other battle where you can see that they don't want you in and they want to put you off. I think that's the more frequent thing. They will say, "We can handle this," or, "It was an isolated incident." The techniques that I always use are that I don't like to allow them to make a decision for us. I don't want to give them the opportunity of "Yes, you can come in," or "No, you can't come in." I try to put it in a way, "Related to this incident, I'm going to be in your community talking to some people and I'd like to meet with you." So basically, it's not, "Well I can refuse you," as much as you don't give them an opportunity to say "No." But then in the meetings with them, often their reluctance level goes up and down the scale. We try to get as much movement as we can from them and that's why I say in some situations we'll get a conciliation approach rather than a mediation approach.

Stephen Thom

 [Full Interview] [Topic Top]

Do you ever have access problems getting into a case, the parties don't want you there?

Answer:
Yeah, I've got one I just blew. It wasn't necessarily me, but it was blown. I've gone out to a situation where there was a series of altercations at school. Many of the African- American parents were concerned that the school was not properly reprimanding both racial parties. The school where students had been arrested did seem very biased. Even the incident that provoked the violence had overtones of racial bias for one side over another. So, we went out and heard the complainant side and met with all the parents of the children involved. Then we went and met with the institution, and told them what we felt, that mediation would be a viable way to get through this. The institution absolutely refused because they'd had learned of a pending million dollar suit against them. I said, that doesn't pre-empt mediation. You may have this suit, but there are some things that I think we can still negotiate. The institution said to me, straight out, that they totally distrust the parties, and anything in mediation would not be kept confidential and would be used in discovery for the lawsuit. There would be no way that they were going to participate in mediation. What do you do with that?

Question:
What did you do with it?

Answer:
Well what I did was, I said, "If there is this level of distrust, I'll see you either now or I will see you later. Because regardless of what you do, whether you go to court and win or lose, the problem you have at your school site and the relationship you have with the African-American community is not going to be resolved by the courts, so if you feel that the parties cannot be trusted, we can very well wait until that lawsuit it over. But you know, you're not going to solve the problem until you sit down and get some agreement, as to what and how you properly carry out your policies and processes with all students. Until that's worked out, you're going to have to sit down at the table at some point, sooner or later. It's your call. I can't tell you that you have to sit down now."I thoroughly believe that they can wait out the legal process, but the law does not put the community back together. The law does not give the parties a process to really put to rest the anxiety and issues that divide them. So I figure, I will be there sooner or later.

Edward Howden

 [Full Interview] [Topic Top]

Question:
Was there a time when one party to a conflict asked you to intervene but the other side didn't want you to come in?

Answer:
Oh, sure, on conciliation as well as mediation cases, though it's not even a prospect for mediation unless both parties show some interest or willingness. Let me back up and amend that. On conciliation cases, CRS didn't have to stay out of a community just because one party didn't want us to come in. If we felt there was a tension scene that needed attention, we would do some kind of advance assessment over the phone by talking to as many people as possible to get some feel for the situation. And if that assessment indicated that we really ought to make more effort on-site, the regional director or whoever else was supervising the scene would say "go," and we would go.

Question:
How would you deal with the party that didn't want you there?

Answer:
I don't recall being refused entrance, but there must have been a few times somebody said no dice, "I really don't want to spend any time with you." Mostly I remember that there would be reluctance about taking any other step beyond us getting in the door. The plus factor in being in the Department of Justice was that it helps you get in the door with a sheriff or a police chief who might otherwise have said, "Who are you?" So we would get in, whether some of the steps we wanted to have taken would happen or not. A bit of persuasion sometimes helps, and of course, if the situation was pretty volatile, most conscientious and intelligent officials are going to want all the help they can get. They're going to want something defused if possible. They may not have, at the outset, any great interest in rectifying some of the causes of the action, but CRS would attempt to help them to see some of those underlying factors and hopefully to address them. In fact we would have no hesitation in pointing out, "Look you know, you can't just paper this over. We're not just here to quiet the situation, we hope that you have an interest in preventing and correcting the problem or some of the sources of the problems."

Will Reed

 [Full Interview] [Topic Top]

Can you recall any specific time when one of the parties or neither of the parties wanted you to get involved?

Answer:
Oh that happened a lot.

Question:
And how did you handle that situation?

Answer:
Well, sometimes, you go to the other party and deal with that party and work with them until the other party decides to come around. Sometimes they will eventually come around and say, "Okay, this guy's already working with you on this, and he evidently must be on your side," or something like that. But the only thing you can really do is demonstrate to them, the best you can, that you are basically neutral, as neutral as you can be. And it usually just comes together. Sometimes they'll walk away and say, "We don't want to be bothered with this individual." I don't think there was ever a time where any of us, and I say "us" in this situation, because this is kind of universal, it dealt with everybody, for the most part, we never concened ourselves with people who didn't want us.

Edward Howden

 [Full Interview] [Topic Top]

Question:
What did you do to get the reluctant party involved?

Answer:
A couple or three visits and lengthy discussions.

FOOTNOTE 4: Mediator Comments on Options

Silke Hansen

 [Full Interview] [Topic Top]

Question:
Is there anything else that you try to do in the initial meeting besides finding out what their view of the issue is?

Answer:
To some extent, I am already trying to lay the ground work for potential mediation. Now of course, the majority of the cases do not end up going to mediation! But let me give you an example. This could be any community. I go into the minority community and let's say that they are concerned about a racist school superintendent. So I will go in and say, "What's the problem?" They say, "We've got a racist superintendent." "What do you want to do?" I'll ask. "We want to get rid of him." That is their number one demand, get rid of the superintendent. So I go on. "Okay. So if you get rid of the superintendent, then what?" "Well," they say, "we will get a superintendent who isn't racist." "Fine," I reply, "but who hired the superintendent?" "The school board." "Okay. Who is going to hire the next superintendent?" "The school board." Now we're getting deeper into the issue. "Well, how can you be sure that you are not going to get another racist?" "We'll tell them that we don't want a racist." "But how do you know that he is not a racist?" I'll ask. "What are the kinds of things that this superintendent is doing that let you know that he or she is racist? What are you going to tell the board that will convince them so that they will not hire another racist?" "Okay," they'll say, changing their approach a bit, "we'll say we need somebody who hires more minority staff." Okay. Now we've gotten somewhere. So then I start writing on my flip chart if there is one. "Okay, so part of the problem is the hiring policies here," I'll say. "What else?" "Well, look at the discipline here. They are expelling and suspending far more minority kids than white kids." "Okay, so the discipline problem is an issue." I continue writing on the chart. By having that kind of discussion I am now helping the community to focus not on the individual, but on the existing policies that need to be changed. Because the reality is that even if they get a different superintendent, if he or she does the exact same thing as the one they have now, they haven't gotten anywhere. On the other hand, if the current superintendent can be persuaded to do things differently, the problems could be resolved. Now, of course, I'm not at that point yet with the group. But if the superintendent would change some behaviors if he would do certain things differently then he wouldn't be seen as a racist that needs to be replaced. Yet initially, the only option that the community sees is, "Get rid of the racist bastard and get somebody better." So when you start taking about what somebody better would look like and what the differences would be, we now begin to get some issues that I can then take to the superintendent. I can't just go and say, "They think you're a racist," because, obviously, the superintendent is not going to agree that he is a racist in most cases. But often, after some conversation, the superintendent does agree that his job would be easier if he had a better relationship with the community. And even though this is just a small, minute trouble-making part of the community it always is [in the superintendent's view] he begins to realize that his job would be easier if his relationship with them was better. So if I can show him that I can maybe improve relations with that community, and he is willing to talk about some of the hiring policies and the disciplining procedures, then I have something I can work with. If we can talk about those issues, rather than whether or not he is a racist even though I haven't talked about mediation a whole lot yet I have begun to lay the groundwork for identifying what some of the actual interests are. This shows that the frustration isn't so much the one person as it is with what's happening to the children of that community. And by helping them to define that, I am also helping them to address it.

FOOTNOTE 5: Mediator Comments on Structuring Mediation

Bob Ensley

 [Full Interview] [Topic Top]

You mentioned a checklist -- is this a mental checklist that you have?

Answer:
A mental checklist, yes.

Question:
And what's on this checklist?

Answer:
Who's to be involved, certain time limits, what goals and objectives did they set that were different than what you had originally thought of terms of. Who else they are involving and any money that is involved. Also, what additional role is there for me? What will I be able to do? Who am I going to assist? Am I going to assist a Human Relations Council, or am I going to assist the people, or do I assist them together? It's much easier if we can work harmoniously with all the groups as they come together, than to assist one over the other, because it may appear as if we're taking a position with the Human Relations Commission and have forgotten about them being able to represent themselves and speak for themselves

Werner Petterson

 [Full Interview] [Topic Top]

Question:
Would you talk about how you designed a plan to handle this case? What did you do at what point? Did it work as you had planned?

Answer:
That's a good question. Once I had the parties' acceptance to enter into mediation, in that case hearing from them in these separate meetings and then later jointly, it was clear that we were kind of locked into boilerplate solutions, which is not acceptable to either side. Once I saw that, then I began to talk with people about what some other solutions might be. My approach to mediation is I feel some responsibility as a mediator to be part of finding solutions. I think some would say, no it's really the burden of the parties, but I think at times a mediator has to come up with some ideas to help flush out possibilities. In fact in this situation later on when we were close to finishing the case one of the attorneys before the plaintiffs said that one of the things that they were never sure of was when I would make suggestions, were they coming from the community, maybe they were coming from the other side? As a mediator making a suggestion, I don't mean to cloud or muddy the waters by one side wondering about whether or not what's being suggested is something the other side wants.

Bob Hughes

 [Full Interview] [Topic Top]

Did you always have a plan before you went on-site, or did you develop a plan or a goal after you arrived on-site?

Answer:
Usually you have a basic plan of assessments that you start with, the people who have the problem, and confirm what they are concerned about. And that's the beginning of that assessment, answering those basic questions that I had mentioned. This of course relates to both conciliation and mediation. Again, you're seeking to identify the issues and who the party's are, and what would it take to resolve the issues in their eyes. And getting that, you formulate your own conclusions and your own strategy, and then ultimately your recommendations.

Question:
Do the parties have an influence on that strategy?

Answer:
Oh yeah. What you feel like would work might be effective.

Wallace Warfield

 [Full Interview] [Topic Top]

Question:
So once you got on-site, you did your assessment. How did you establish what your plan of attack – well, terrible phrase.....

Answer:
Freudian. (laughter)

Question:
Yeah – what your plan was going to be?

Answer:
Well, I don’t know. No CRS person is a tabula rasa. You only have kind of an imprint, and part of that comes from having done a number of cases like this in the past. Whatever it is that you’re going to do, you’ve probably done, unless you’re a complete novice. You’ve done something like that in the past, and you already have in your mind – you’ve got a kind of a tableau. And then the question is, you want to see, "Well, does this fit?” If it fits, you might decide to simply use it. If it doesn’t fit, then the question is, how are you going to try to force it to fit? And many CRS people try to do exactly that: They try to force the square peg into the proverbial round hole. It wouldn’t fit, but if you read the reports, they could make fit it anyway! When I was Associate Director of Field Coordination, I spent much of my time reading field reports, but I would also sometimes have independent flows of information. So, I’m reading this report from the beginning of an entry to its closure, a reporting out of the successful concluding of this case, and I said, "Is this person in the same city that....somebody else was?” But in a normative way, what you try to do is go through a series of adjustments: "It looks like this, but no it doesn’t. It doesn’t look like that; so what is it? Something else?” And so there’s this degree of interpretation and categorization that you had to sort of try to do. "How can I then change what I do so that it meets this particular need?” This is a process – and I should know – that can be expanded over some time, and it never stops. So an assessment is ongoing. Sometimes, in a kind of showman-like practice in the moment, you kind of have to make those adjustments right in the middle of a situation. Everybody has to do that; I don’t think that’s different from what anybody else does.

FOOTNOTE 6: Mediator Comments on Power Relationships in Mediation

Ernest Jones

 [Full Interview] [Topic Top]

Question:
I appreciate the effort. You mentioned something a few minutes ago about leveling the playing field and you can talk more generally now. You don't have to stick with the Olympic case. How did you handle situations or how did you level an unequal playing field?

Answer:
I don't necessarily view that as my role every time. There may be times when I don't consider that to be a significant factor but if I want to try and level it and I think that's something that a mediator should be doing in this particular case, then there's a number of ways you can do that. One of the ways you can do just that is you can communicate nonverbally your support for the person who is on the low end of the playing field. There are a number of little tricks you or things that you can do like the use of body language to send a message that will indicate something to someone. It creates the appearance that I'm on this person's side and I'm here to help them, so you're not just dealing with that guy now your dealing with maybe two.

Question:
For example, non-verbal?

Answer:
Oh, moving physically closer to the person, having eye contact with them but not with the other person. Not that I don't want to look at them, not that I'm afraid to look at them because they are not important enough to look at. Anytime you start doing these body language things, you have to know what the hell you're doing. You have to be able to do this, but you learn to do that. By using pitch and inflection, you know sort of like talking more calmly and rationally and an even tone to the person you're trying to help. More aggressive and louder with the person, you are trying not to help. You know, there are all kinds of things you can do by using body language, and even by using tonality and inflection and those kinds of things. Another thing you can do in terms of leveling the playing field is to do some caucusing. You have to be very careful here that you don't screw up the neutrality of the way you're doing this, but what you do is try and direct the person who hasn't made it up to the level of the field, try to get them thinking in terms of how they can improve their position. You might recommend that they read something or they do something, or that they check into something. You don't tell them to do it, you just say this is something you might want to think about. It's usually best to do that by throwing out something else also, here's another option that you might want to consider. So, you're not telling them here's one thing to consider, you're telling them, here's 2 or 3 things to consider, so that there's options on the table. But you use the caucus period to point that person in the direction that's going to help them. When you caucus with the other side you know you're doing something that's not the exact opposite but what you do is you try to get them to lighten up a little bit. Or you can let them know in a subtle or maybe not so subtle ways that you know what's going on, and as a mediator because you're neutral you may not be able to do anything about it directly but I want you to know that I know kind of thing. The playing field doesn't necessarily have to be completely level, it's just the system, the process works better when it's level, and generally speaking I feel better about what's going on when it's relatively level. When it's relatively level then if somebody hurts themselves in the process, it doesn't bother me as much because they were both about the same level, and if they screwed up, I can't do everything all the time, but it should be a level playing field.

Question:
So you said that when you see a large discrepancy in the power you feel the need to sort of level the field, as level as it can be, that's relatively speaking, but what are those specific things that you're looking for that tells you that this group is not on the same level?

Answer:
Well, I don't know what to say here, as reluctant as I might be to make assumptions, I think you can generally assume a community group that's not really associated with a national organization. They're working at a hindrance when they're dealing with officials who have tax dollars, and all the time in the world because that's their job. The officials have access to data, and very likely although not exclusively, but very likely they are better educated. They just gain common sense, it just kind of tells you that officials are in a better position than our community leaders. Now if you're talking about a NAACP even though that chapter might be unsophisticated. When you're coming out of rural Arkansas, you know, they're not that well educated, they just don't have the sophistication level, because they've never had the opportunity that the mayor, the chief of police and all these people have. But what they do have is their organization, so they can bring in the legal defense plan. Even though that young group there is unsophisticated and may not be at the same level, they have a support mechanism they can bring people that were not on their level of playing field, and bring them up to power.

Question:
So in those cases did you sit back and let the community group access their resources and work with the flow?

Answer:
I may be different than a lot of people, but here is how I view some of the stuff. I take a very clear view that if you're going to raise an issue, then you need to know what you're talking about. If all you have is a high school education and the mayor's got a law degree, that doesn't necessarily make the playing field uneven. But, if you're a community organization or a community group, if you're going to raise an issue then you better have done your homework. My job as a mediator is not to do your homework, or do your work for you. My role is very simple, I'm just here to help you try and figure out what the answer is, I'm not going to come up with the answer, I'm just going to help you figure out how to do it. I expect if people want to raise an issue, then they're prepared to raise it and defend it. So, generally speaking I don't feel a great need to level the playing field. When I feel the need to level the playing field is when clearly I'll just stick with the example of obsidian community organizations. Clearly the city is acting in appropriate ways, that's not my job, my job is not to let that guide me because that takes me out of my usual stance, but I'm not stupid, I can see the writing on the piece of paper.

Question:
QUESTION UNKNOWN

Answer:
Because I know that that's happened and I want to maintain my neutrality. How do I do that? Well, the way I do that is by very indirectly coming to assistance of the community group to bring them up to where the playing field is level. I see that as a role of a mediator. I think we should have as level a playing field as you can get. Everybody should be starting at about the same place. So when I see that that needs to take place and I think that's a legitimate function. I mean it's an "iffy" kind of thing, cause you're still trying to maintain that neutrality and see if everybody's helping somebody else. There are times when it's just got to be done.

Wallace Warfield

 [Full Interview] [Topic Top]

Question:
So how do you deal with the notion that -- again, this is another thing taken out of the literature -- that in order to be successful in mediation, the parties have to be of relatively equal power. So what’s commonly done is mediators will work to empower the low-power group, and I’m hearing you say that you do that to a degree, but that can then cause problems with the other side.

Answer:
Well, it happens in the very beginning. Typically the way that happens in CRS and most other kinds of mediation where there’s this huge dis-equilibrium of power – and the same thing can happen in organizations, for example – is that you do your power-balancing in the beginning of the process. Let’s sort of walk through a typical process: you come into a community, you meet with the leadership in the community, then you meet with the so-called establishment side, the local officials, the business people, and the first thing they say to you is, "So who have you met with on the community side?” and so you say, "Well, I’ve met with so and so." They say, "Ah. A, B, and C is fine, but D and E.....those guys or those people -- known troublemakers, can’t have them involved in the process.” So right from the very beginning, there’s an attempt, even before you’ve gotten into the formal sessions, to discredit people who, in fact, could be the people who could redress the balance of power in a setting, because they know they don’t want those people there. They don’t want the balance of power. So I think the job of the conciliator or the intervener, just to think of a more neutral term, speaking of neutrality, is to convince the powers-that-be that if they really want this to be a successful outcome, without defining what success is at this point -- because you don’t want to do that -- then they need to be here. "You need to allow us to do our work, to make sure that the discussions stay on an even keel. We can’t promise you that there won’t be some explosions from time to time, but you know, you’re going to have to be prepared to deal with some of this if it happens." So, there was that aspect of it, right from the very beginning. And then, running throughout most interventions, you could say that at the beginning, but there would be these kinds of recidivist fall-backs to the same kind of attempt to slowly disempower people that they didn’t want to be at the table. Either in this particular forum, or others. Something that we don’t give enough credit to in general, is that parties in disputes or conflicts are pretty sophisticated. We think they look only at these particular issues, but in many cases, people in communities are thinking about, "What are the implications of this as an outcome for future relationships?” And read into that, "future power relationships.” So if they’re successful in this issue, we know that coming up next year there’ll be a bond issue about such-and-such. So they’re looking way down the line, in some cases much further than the mediator is. They’re looking at externalities that the mediator is not even seeing. So I think that the mediator then has to be able to constantly work to be able to do that. There are several techniques that the mediator, or the intervener, has with which to empower the low-power party. I think that the idea that CRS came in – if not explicitly, then certainly implicitly – to redress the power was certainly known by everyone. But the very fact that parties were being brought to the table, metaphorically and literally, was in fact a kind of equalizing of the power. Jim Laue had an expression, as a tap-dance around this issue of advocacy, by saying that he was "an advocate for the process”, remember that? Well, if you strip away the veneer, you see what he’s really saying. He’s an advocate for social change. If the process is going to bring about social change, then there’s the connection.....

Question:
How did this play with the white communities? Did it generally work?

Answer:
It depended. It really depended. Then again, in the social science field there’s a tendency to sort of demonize white communities. You know, "They’re all one thing or the other”. Well, the truth of the matter is that so-called white communities are fairly diverse in and of themselves. So the fact that you have a white leadership in a community, probably Republican, is supposed to mean, in the popular conception, that these are people who adhere to all the kinds of things that are an anathema to your perspective. You know, they’re right-wing people, they’re conservatives, they’re against affirmative action, so you just name a litany of things and that’s where they are. Well, if you got into these communities, what you began to discover was that when people live their lives in these communities, they articulate a different kind of perspective. It becomes a matter of, "We have to get through this particular situation.” So in some instances, you find some white leadership adhering to that kind of popular line, but on the other hand, you also find whites who say, "You know, we know this change is coming. It’s going to be inevitable; we have face up to this. We may not like it, but our children are going to grow up in this town, and we need to find a way of dealing with it.” It didn’t necessarily mean that they were ready to give away the proverbial shop; it’s just that these realizations and recognitions were there, and a good intervener would find a way to capitalize on that.

Nancy Ferrell

 [Full Interview] [Topic Top]

Question:
What about in the context of the case? Do you do any training, especially with a minority group, in order to somewhat level the playing field?

Answer:
I would talk to the establishment and the minority group about learning how to clarify issues, and begin to strategize. I'll coach and train them. I'll sit in private with them, in kind of a teaching mode, and explain to them how to respond to a system and get what you need in a productive way. If you're going to do some destructive things, you can do that on your own. If you want to be productive, then I want to help you with that. A lot of the coaching, teaching, and technical assistance was not behind the scenes because I made sure everyone knew I was doing that. It wasn't undercover, I wasn't sneaking around and helping. Some of the establishment people weren't any more sophisticated about the issue than the community groups were, so I'd do the same thing for them. Generally, the issues were being generated out of the community because the establishment says they don't have any problems. The teaching and the coaching on the establishment side was to help them understand the dynamic of perception. I didn't feel like I had to make them fess up and say, "Yeah, we violated this rule," or, "We've not done all we can do." If you have to get them to confess, you're not going to get them to the table. If I could get them to say, "Sure, we could do better," then that's what I was after. My next goal is to help them emphasize and say, "We're not doing that. But, if they believe we're doing it, I understand why they're so frustrated." That was my next indication that we were moving in the right direction.

Question:
Can you verbalize how you moved in that way?

Answer:
It took time establishing that trust relationship. The community would be saying the same thing, "They're not going to be fair or honest. They're not going to deal with us with integrity, they never have." To be able to come to some point and say to the community, "They have assured me that they're coming to the table in good faith. Now I'm going to take them at their word. Are you going to at least give it a shot?" The same thing with the establishment. It was a matter of being able to verbalize for the community at first, this is how they feel. "If that happened to you, how would you feel?" "Well, I'd feel awful. But we didn't do that." "Well, I'm not saying you did. But if they believe you did, they feel that." That worked.

Question:
You're doing this before the group meeting?

Answer:
Yes. Right. One of my decisions about whether they were ready to meet at the table was whether or not I could get any glimmer of empathy from all sides, however many sides there were. If I couldn't get some awareness or sensitivity to other party's position, I was reluctant to go to the table. I might continue shuttling back and forth and come up with some kind of an agreement, but if you can't create empathy, you can't have a relationship. Without that, mediation is not going to work. If there's no reason for us to relate, there's no reason for me to empathize with you.

Silke Hansen

 [Full Interview] [Topic Top]

Question:
Let's talk a little bit more about the issue of power disparity between the parties, and CRS's role as a neutral. Even though you say you are a neutral, you also, in a sense, try to empower the low-power group, do you not? How do you balance that?

Answer:
If you mean how do I justify that, let's start with that piece first. Very easily, because I don't think I can do an effective job of mediating between two parties if there isn't some balance there. So unless I help bring about that balance, mediation won't work. Of course, you can't necessarily assume that because one side is a minority community that it's the powerless community. That's another issue. But let's assume that, in fact, there is a power imbalance. Unless I can help balance that, and empower each party to effectively participate at the mediation table, we're not going to have an effective, successful mediation. So I explain that to the institution and I offer pre- mediation training to both sides. I also use that as a way to help each of the parties identify what their interests and concerns are, and what they hope to get out of this process. Sometimes, that's particularly important for the institution, because they often start out from the perspective of, "Okay, how much do they want, and how much of that are we going to give them?" They rarely think in terms of, "What do we want, and how much of that are we going to get?" The reality is that they usually do want something from the community, so this helps them become aware of that. This is another trust-building mechanism as well because I'm acknowledging that, "You need things too! What is it that you want? What is it that you're looking for?" I want to make sure that both sides are heard and that we can talk about how each side's needs can be met. I also let the institution know that it's in their best interests to have a well-trained, capable party on the other side because it will be easier to deal with and negotiate with them if they are capable. Part of what the institution is afraid of is that they will have a group of ranting, raving maniacs on the other side that they can't communicate with. So part of what I'm providing is some security, some format which is reasonable from their perspective. I may say to the institution, "Now, you understand that party A is angry and they're going to need to express that. But trust me, we're going to get beyond that, and get to problem- solving." So I lay the groundwork for there being some anger. I hate to call it "venting," because to me "venting" sounds too patronizing. I don't want to be allowed an opportunity to vent; I want to be allowed an opportunity to be heard. So, even though the term "venting" might apply, I avoid that word because it does sound patronizing to me. It has undercurrents of, "They're just spouting off, and they really have nothing to say." In most cases they have a lot to say, but they've never been allowed to say it and be heard before.

Angel Alderete

 [Full Interview] [Topic Top]

Answer:
If I observe that one group is not able to negotiate with another group on a particular level, then we try to bring them up to that level. It'll never occur that they'll be on a really level field, but at least they should understand some of the things that might happen and some of the processes that might take place. Also, you talk to them in terms of the potential for the city or official group to try to buy them and not really do anything to fix the problem. For the most part, whenever I got involved with officialdom, I usually felt that's what they were trying to do. They weren't trying to be of any help.

Leo Cardenas

 [Full Interview] [Topic Top]

Question:
You just said something very interesting, "You had to work the ethnicity out of it." How do you do that?

Answer:
Very carefully. First of all, by trying to bring equity to the table in terms of numbers -- numbers of the organizations. And one of the things that happened here and it happened in other cities, is bringing back to the table individuals who did not currently have a title with the organization, but had held a title before and were highly respected. We asked them to come to the table and be sort of senior, elder spokespeople and bring unity, and that worked very well.

Question:
Did you try to get equal numbers of each race, or did you try to do something proportionately?

Answer:
I think proportionate to the organizations who actually signed to be members of the coalition.

Question:
And this was open to anybody who wanted to be included?